Opinion
December 29, 1961
Claimant has presented against the estate of decedent a claim based upon a check. There is adequate proof that the check bears the signature of decedent. It is conclusively established that the check was postdated, since decedent died February 25, 1955 and the check is dated May 31, 1955. A negotiable instrument "is not invalid for the reason only that it is * * * post-dated", but the person "to whom an instrument so dated is delivered acquires title thereto as of the date of delivery" (Negotiable Instruments Law, § 31). There is, however, a presumption as to delivery of the check when no longer in the possession of the drawer. This presumption is that "where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved" (Negotiable Instruments Law, § 35). The possession of the instrument by claimant, therefore, imports a presumption of delivery by the drawer during his lifetime and hence the transfer of title during such period is deemed effected by such delivery within the terms of section 31. Since this is a direct action on the instrument itself, the question whether the drawee bank had authority to pay it after the drawer's death is immaterial and this seems the main ground for the Surrogate's order disallowing the claim. Order reversed on the law and claim allowed, without costs. Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ., concur. [ 9 Misc.2d 909. ] [See post, p. 701.]